Court File and Parties
Date: May 7, 2020
Court File No.: F147/15B
Ontario Court of Justice
Between:
J.T.K. Applicant
— And —
A.E.M. Respondent
Before: Justice K.A. Baker
Heard on: March 4, 2020
Endorsement released on: May 7, 2020
Counsel:
E. VanLooyen ............................ Counsel for the Applicant
A. Nicholls .............................. Counsel for the Respondent
Endorsement
BAKER, J.:
[1] On May 4, 2020, I granted a 14B motion seeking an urgent tele-hearing on issues involving access to the subject child, E.G.M., born September 14, 2004. The tele-hearing was scheduled for May 12, 2020, with timelines set out for exchange of further material.
[2] The court has since been advised that the parties have resolved the immediate issue of time share with the child. They agree there is no longer a need to proceed with the 'urgent' tele-hearing previously scheduled for May 12, 2020.
[3] The remaining issues raised in the motion are make up time and costs.
[4] The parties disagree on how these matters should be addressed. The Applicant wishes to have the issues resolved by way of written submissions, including an opportunity for the Respondent to serve and file any evidence she would wish to rely upon and a counter proposal respecting make up time. The Respondent says the matter is no longer 'urgent' and accordingly, it should be put over to the presumptive adjournment date, with the remaining issues to be determined after oral hearing, in due course.
[5] The Ontario Court of Justice has, today, released an updated Family Scheduling Memo. A notice to the profession will be forwarded with new guidelines on family matters. The new guidelines expand hearings to matters that can be addressed by affidavit evidence and written submissions.
[6] The remaining issues in this case are discrete, uncomplicated and amenable to resolution by way of affidavit evidence only.
[7] The public health emergency presented by COVID 19 does not extirpate the court's obligation to apply the Rules of the Family Court. Rule 2 is particularly relevant in this matter. It reads as follows:
Duty to Promote Primary Objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2(4).
Duty to Manage Cases
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2(5).
[8] An oral hearing would increase costs to the parties and require the allocation of judicial resources to relatively straightforward issues. It is difficult to see what the benefit would be of oral hearing on these kinds of issues.
[9] Moreover, the Respondent's proposal to adjourn the matter to the presumptive date would leave this case, like many others, in limbo, for future resolution at some unknown time. The court can take judicial notice of the fact that the restrictions on hearing arising from the COVID 19 emergency will lead to a substantial backlog of cases. When the emergency abates, the court will face unprecedented workload demands in dealing with that backlog.
[10] There is then, a substantial systemic benefit to resolving those matters that can be dealt with under the new expansion of workload, now.
[11] There is also a specific benefit to these parties in resolving the outstanding issues raised on the motion. The Applicant sought and received leave to bring the 'urgent' motion prior to serving and filing the Motion to Change. This is an exception to the usual requirements of the Rules and was granted due to the exigent circumstances. Those circumstances no longer exist.
[12] If the matter is to remain before the courts, perhaps indefinitely, the pleadings will have to be regularized. This will entail additional expense to the parties. It will also add to the workload of an already overburdened court administration.
[13] It may well be that the resolution of the more pressing issues will obviate the need to proceed upon a Motion to Change. This would favour the early resolution of all issues arising from the 'urgent' motion, so that further litigation is not required.
[14] Accordingly, order to go:
The hearing date of May 12, 2020 at 10:00 a.m. shall be vacated.
The Applicant shall have until May 15, 2020 to serve and e-file any additional evidence on his request for make up time with the child, and to file written submissions on costs.
The Respondent shall have until May 22, 2020 to serve and e-file any evidence she wishes to rely upon on the issue of make up time or costs, and to file written submissions on costs.
The Applicant shall have until May 27, 2020 to e-file any reply evidence.
Each party shall be limited to 10 pages on evidence and written submissions combined. A bill of costs may be included and shall not be counted against the page total.
Dated at Brantford, Ontario
This 7th day of May 2020
The Honourable Justice K.A. Baker